ON Thursday, the Supreme Court allowed the appointment of ad-hoc judges to the high courts to deal with the whopping pendency of cases.
A three-judge Bench comprising Chief Justice of India (CJI) Sanjiv Khanna, Justices B.R. Gavai and Surya Kant also directed that the number of ad-hoc judges should not exceed 10% of the sanctioned strength in a high court.
The Bench also said that ad-hoc judges would sit in a Bench presided over by a sitting high court judge to decide pending criminal appeals.
As per the National Judicial Data Grid (NJDG), recent data indicates that there has been an increase in pendency levels in almost all the high courts. Around sixty-two lakhs cases were pending before the high courts in India as of January 25, 2025, of which more than eighteen-lakhs twenty-thousand cases were criminal cases and more than forty lakhs cases were civil.
Ad-hoc judges are appointed under Article 224A of the Constitution of India. The chief justice of a high court, with the previous consent of the President, may request a former judge of a high court to sit and act as a judge of the high court for that State. Every person so requested is entitled to such allowances as the President may by order determine and have all the jurisdiction, powers, and privileges of, but shall not otherwise be deemed to be, a judge of that high court.
On April 20, 2021, a three-judge led by the then CJI S.A.Bobde while considering a public interest litigation concerning the huge pendency of the cases, held that that the recourse to the appointment of ad-hoc judges should not be made unless 80% of the sanctioned strength was already either recommended or working.
The Bench led by then CJI Bobde was of the view that resorting to ad-hoc judges should not become a panacea for inaction in making recommendations to the regular appointments. To prevent such a situation, the then Bench had directed that ad-hoc judges could be appointed only on the process having been initiated for filling up the regular vacancies and awaiting their appointments. The Bench had further directed that there should not be more than 20% of the vacancies for which no recommendation has been made for ad-hoc judges to be appointed.
Now, a Bench led by CJI Khanna has put this part of the April 20, 2021 order in abeyance. The Bench has directed that every high court can appoint ad-hoc judges between 2 to 5 in number, but not exceeding 10% of the sanctioned strength.
The new Bench has also stayed yet another direction of the April 20, 2021 order. Earlier the Bench had directed that the division Bench could be formed only of ad hoc judges to decide the old cases. Now the bench has ruled that ad-hoc judges will sit in a Bench presided over by a sitting high court judge and decide pending criminal appeals.
Under the Memorandum of Procedure (MoP) governing the process of appointment of judges which also includes appointment of ad-hoc judges whenever the necessity for appointment of ad-hoc judges arises, the chief justice will after obtaining the consent of the person concerned, communicate to the Chief Minister of the State the name of the retired judge and the period for which he will be required to sit and act as judge of the high court.
The Chief Minister will, after consultation with the Governor, forward his recommendation to the Union Minister of Law, Justice and Company Affairs.
The Union Minister of Law, Justice and Company Affairs would then consult the Chief Justice of India in accordance with the prescribed procedure.
On receipt of CJI’s advice, the same would be put up to the Prime Minister, who will then advise the President as to the person to be appointed to it and act as a judge of the high court.
As per the information shared in Parliament in December last year, as of November 21, 2024, there were a total of 364 vacancies in high courts against the sanctioned strength of 1122 judges. The High Courts-wise vacancies of judges as of November 21, 2024, are given in the below chart.
Access the Order below: